Filed: Jun. 02, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4100 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DARRELL T. WASHINGTON, a/k/a D-Black, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., District Judge. (3:11-cr-02064-JFA-10) Argued: March 18, 2014 Decided: June 2, 2014 Before TRAXLER, Chief Judge, DUNCAN, Circuit Judge, and DAVIS, Senior Circuit Judge. Affirmed by unpublishe
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4100 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DARRELL T. WASHINGTON, a/k/a D-Black, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., District Judge. (3:11-cr-02064-JFA-10) Argued: March 18, 2014 Decided: June 2, 2014 Before TRAXLER, Chief Judge, DUNCAN, Circuit Judge, and DAVIS, Senior Circuit Judge. Affirmed by unpublished..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4100
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARRELL T. WASHINGTON, a/k/a D-Black,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:11-cr-02064-JFA-10)
Argued: March 18, 2014 Decided: June 2, 2014
Before TRAXLER, Chief Judge, DUNCAN, Circuit Judge, and DAVIS,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Jonathan McKey Milling, MILLING LAW FIRM, LLC, Columbia,
South Carolina, for Appellant. Jimmie Ewing, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
ON BRIEF: William N. Nettles, United States Attorney, William K.
Witherspoon, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darrell Washington was convicted of various drug-related
charges, including conspiracy to distribute crack and powder
cocaine, and use of a firearm in furtherance of a drug-
trafficking offense. The district court sentenced Washington to
a total of 300 months’ imprisonment, comprising a 240-month
mandatory minimum sentence for the drug-conspiracy conviction
and a mandatory consecutive 60-month sentence on the § 924(c)
using-a-gun-in-furtherance conviction. Washington appeals,
challenging his sentence but not his conviction. For the
reasons set forth below, we affirm.
I.
Washington was one of ten defendants named in a 47-count
indictment. Washington was charged with one count of conspiring
to distribute five kilos or more of cocaine powder and 280 grams
or more of crack cocaine, see 21 U.S.C. §§ 841(b)(1)(A), 846;
two counts of possession with intent to distribute 28 grams or
more of crack cocaine, see 21 U.S.C. § 841(b)(1)(B); two counts
of being a felon in possession of a firearm, see 18 U.S.C. §
922(g)(1); one count of using a firearm in furtherance of a
drug-trafficking offense, see 18 U.S.C. § 924(c)(1), and three
counts of using a communications facility to facilitate a felony
drug offense, see 21 U.S.C. § 843(b). According to the
allegations of the indictment, the conspiracy began around the
2
summer of 2000 and continued through February 2012, the date of
the indictment; the conduct underlying the various substantive
counts asserted against Washington occurred on specified dates
in 2009 and 2011.
While most of the defendants named in the indictment
pleaded guilty, Washington proceeded to trial. In the first
phase of a bifurcated proceeding, the jury convicted Washington
on the conspiracy charge and on six of the eight substantive
counts. 1 In the second phase, the jury determined the drug
quantities involved and found the conspiracy responsible for
five kilos or more of cocaine and 280 grams or more of crack
cocaine.
A conspiracy involving the drug quantities found by the
jury normally carries a mandatory minimum sentence of 10 years.
See 21 U.S.C. § 841(b)(1)(A)(ii) & (iii). However, if the
defendant violates § 841 “after a prior conviction for a felony
drug offense has become final,” id. (emphasis added), and the
government provides the defendant with the required notice, see
21 U.S.C. § 851(a), the mandatory minimum sentence increases to
20 years, see 21 U.S.C. § 841(b)(1)(A). Washington was
convicted in 2004 in South Carolina state court of possession
1
The jury acquitted Washington of one possession-with-
intent-to-distribute count and a related § 922(g) count
involving conduct occurring on May 6, 2009.
3
with intent to distribute crack cocaine. The district court at
sentencing determined that that conviction triggered application
of the 20-year mandatory minimum sentence, and the court
sentenced Washington to a total of 300 months’ imprisonment.
This appeal followed.
II.
Washington challenges the district court’s determination
that the 20-year mandatory minimum sentence required by §
841(b)(1)(A) was triggered by Washington’s 2004 conviction.
Relying on the Supreme Court’s decision in Alleyne v. United
States, 133 S. Ct. 2151, 2155 (2013), which held that facts that
increase a mandatory minimum sentence must be submitted to the
jury, Washington argues that his Sixth Amendment rights were
violated because the district court, not the jury, made the
factual findings about his prior conviction necessary to
increase the mandatory minimum sentence. We disagree.
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme
Court held that the Sixth Amendment requires that any fact
“[o]ther than the fact of a prior conviction . . . that
increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt.”
Id. at 490. In Harris v. United States,
536 U.S. 545 (2002), the Court carved out from the Apprendi rule
facts that merely increase the mandatory minimum sentence for a
4
crime, concluding that the Sixth Amendment permitted judicial
fact-finding that increases the mandatory minimum sentence. See
id. at 567.
The Court reversed course in Alleyne, overruling Harris and
holding that any fact that increases the statutory mandatory
minimum sentence is an element of the offense “and must be
submitted to the jury and found beyond a reasonable doubt.”
Alleyne, 133 S. Ct. at 2158. The Alleyne Court was careful to
note, however, that it was “not revisit[ing]” the narrow
exception to the general rule for the fact of a prior conviction
recognized in Almendarez–Torres v. United States,
523 U.S. 224
(1998). See
Alleyne, 133 S. Ct. at 2160 n.1 (“In Almendarez–
Torres . . . , we recognized a narrow exception to this general
rule for the fact of a prior conviction. Because the parties do
not contest that decision’s vitality, we do not revisit it for
purposes of our decision today.”). Alleyne, therefore, did not
disturb that exception and does not require prior convictions to
be alleged in an indictment and submitted to the jury. See
United States v. McDowell,
745 F.3d 115, 124 (4th Cir. 2014)
(explaining that even after Alleyne, “Almendarez–Torres remains
good law, and we may not disregard it unless and until the
Supreme Court holds to the contrary”).
As to Washington’s prior conviction, the district court was
required only to determine what crime Washington was convicted
5
of and when he was convicted, facts that are inherent in the
fact of conviction itself. See United States v. Thompson, 421
F.3d 278, 285-86 (4th Cir. 2005). The district court’s fact-
finding about the 2004 conviction was thus entirely consistent
with the Almendarez-Torres fact-of-prior-conviction exception
and did not violate Washington’s Sixth Amendment rights. See
United States v. Smith,
451 F.3d 209, 224 (4th Cir. 2006)
(explaining that the fact-finding required by § 851 does not
violate the Sixth Amendment). 2
Determining the date and subject matter of the prior
conviction, of course, does not end the matter – the district
court must also determine whether Washington violated § 841
after the 2004 conviction. See 21 U.S.C. § 841(b)(1)(A) (“If
any person commits such a violation [of § 841(a)] after a prior
conviction for a felony drug offense has become final, such
person shall be sentenced to a term of imprisonment which may
not be less than 20 years . . . .” (emphasis added)).
Where, as here, “a defendant is convicted of a drug
conspiracy under 21 U.S.C. § 846, prior felony drug convictions
that fall within the conspiracy period may be used to enhance
2
Washington does not contend that the district court looked
outside the Shepard-approved sources when determining the date
and subject matter of Washington’s 2004 conviction. See Shepard
v. United States, 544 U.S. 13, 26 (2005).
6
the defendant’s sentence if the conspiracy continued after his
earlier convictions were final.” Smith, 451 F.3d at 224-25.
Determining whether the conspiracy continued on, however, does
not require the district court to make factual findings about
the prior conviction, but simply requires the district court to
determine the scope and effect of the verdict rendered by the
jury in this case.
Even if we were to accept Washington’s argument that the
jury should have been asked if the conspiracy continued after
the date of the prior conviction, any error would be harmless
beyond a reasonable doubt. Although the indictment alleged that
the conspiracy began in the summer of 2000, there was no
evidence showing that Washington was involved in the conspiracy
before 2004 -- all of the evidence presented at trial of
Washington’s involvement in the charged conspiracy involved
events occurring after the 2004 state-court conviction. Indeed,
Washington’s own statements to law enforcement officials, which
were admitted at trial after the district court found that
Washington breached the terms of a proffer agreement, show that
Washington did not join the conspiracy until well after 2004.
See Supp. J.A. 205. Because the only evidence presented to the
jury involved post-2004 events, no rational jury could have
convicted Washington of conspiracy but also found that the
conspiracy ended before 2004. Any error was therefore harmless.
7
See, e.g., United States v. Brown, 202 F.3d 691, 700 (4th Cir.
2000) (failure to submit element of offense to the jury is
harmless beyond a reasonable doubt “where a reviewing court
concludes beyond a reasonable doubt that the omitted element was
uncontested and supported by overwhelming evidence” (internal
quotation marks omitted));
id. at 701 (if omitted element is
contested, error is harmless if the record does not contain
evidence “that could rationally lead to a contrary finding with
respect to that omitted element” (internal quotation marks
omitted)).
III.
Accordingly, for the foregoing reasons, we hereby affirm
Washington’s sentence.
AFFIRMED
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